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A PROJECT REPORT ON

DYING DECLARATION

The Indian Evidence Act, 1872

Submitted To: Submitted By:

Dr. Sabina Salim Anmol Sandhu
UILS Deptt. Roll No. 170/13
Panjab University Section- C
Chandigarh 7th Semester
BCom.LLB.(H)
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ACKNOWLEDGEMENT

I take the prerogative to express my heartfelt gratitude to my guide Dr. Sabina Salim, UILS
department, Panjab University, Chandigarh, for her diligent guidance all through the course
of my project. It is her fruitful teaching which has given me a comprehensive understanding
of the topic. She has truly been a source of inspiration to me.

I would also like to thank my friends, who have been very helpful in providing me useful
information, wherever needed for the completion of my project. I also extend my
thankfulness to my parents for their precious moral support.

I’m grateful for all their help and valuable advice which has made the successful completion
of my project possible.

Anmol Sandhu
Roll no. 170/13
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CONTENTS

Sr. no. Particulars Page no.

Table of cases 4

1. Introduction 5
2. History 6
3. Exception to hearsay 7
4. Ingredients 8
5. Statement must relate to cause of death 9
6. Death must be caused 13
7. Expectation of death not necessary 13
8. Difference 15
9. Statement to whom? 16
10. Form of declaration 18
11. Proximity of time between statement and death 21
12. Corroboration 26
13. Multiple dying declaration 31
14. Conclusion 32
15. Bibliography 33
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TABLE OF CASES

 Barati v. State of U.P, AIR 1974 S.C. 839

 Chandra Bhan Singh vs. State, 1971 CrLJ 94
 Deepak Baliram Bajaj vs. State of Maharashtra, 1993 Cr L J 3269
 Emperor vs. Mohammad Shaikh, (1942) 2 Cal. 144
 Jai Prakash v. State of Haryana, (1997) 7 S.C.C 284
 Khushal Rao v. State of Bombay, 1957
 Kusa v. State of Orissa, 1980 SC 559

 Lallubhai Davanchand Shah vs. State of Gujarat AIR 1972 SC 1776

 Laxman v. State of Maharashtra, (2002) 6 SCC 710
 Mafabhai Nagarbhai Rowal vs. State of Gujarat, (1992) 4 SCC 69
 Mehrban v. State, 1974
 Nandyala Venkatrama vs. State of A.P, AIR 2011 SC 567
 Naresh Rai v. State of Bihar, 1994 Cr L J 978 (Pat.)
 Pakala Narayan Swami vs. Emperor, 1939
 Queen-Empress vs. Abdullah, (1885) 7 All 385
 Rambai v. State of Chhattisgarh, (2002) 8 SCC 33
 Ramsai vs. State of M.P., AIR 1994 SC 464
 R v. Jenkins, (1869) L.R. 1 C.C.R. 187
 R v. Woodcock, (1789), 1 Leach 500
 Sharad Birdhi Chand Sarda vs. State of Maharshtra, AIR 1984 SC 1622
 Smt. Laxmi v. Om Prakash and others, AIR 2001 SC 2383
 Smt. Paniben v. State of Gujarat, AIR 1992 SC 1817
 Shym Narayan Singh vs. State of Bihar, 1993 Cr L J 772 (Pat.)
 State of Karnataka vs. Shariff, 2003 Cr L J 1254 (SC)
 State of U.P v. Shishupal Singh, AIR 1994 SC 129
 State of M.P. vs. Dal Singh & Ors., AIR 2013
 State v. Maregowda, 2002 (1) RCR (Criminal) 376 (Karnataka) (DB)
 State of Punjab v. Amarjit Singh, A.I.R 1988 S.C. 2013
 State of Punjab v. Kikar Singh, 2002 (30 RCR (Criminal) 568 (P & H) (DB)
 V.S. More vs. State of Maharashtra AIR 1973 SC 519 at p.521
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INTRODUCTION
A dying declaration means the statement of a person who has died explaining the
circumstances of his death. A dying declaration is called as “Leterm Mortem” which means
“words said before death”.

Section 32(1) makes relevant what is generally described as dying declaration, though such an
expression has not been used in any Statute. It essentially means statements made by a person
as to the cause of his death or as to the circumstances of the transaction resulting in his death.

Dying declaration is based on the maxim “Nemo moriturus praesumitur mentire” i.e. a man
will not meet his maker with a lie on his lips.

Charles W. Quick noted in a classic article on dying declarations, "Anger, wish for revenge,
and plain ‘cussedness' persists in many individuals until their last breath....

The situation in which a man is on death bed is so solemn and serene when he is dying the
grave position in which he is placed, is the reason in law to accept the veracity of his statement.

The principle of Section 32 is that a person who has the first-hand knowledge of the facts of
a case, but who, for reasons stated in the Section, such as death or disability, is not able to
appear before the court, then; his knowledge should be transmitted to the court through some
other person. If he recorded his knowledge somewhere, for example, on a portrait or register,
that record may be produced or if he told his knowledge to another person that other person
may appear to testify of what he was told.

Such a statement can be proved, when it is made by a person as to the cause of his death, or as
to any of the circumstances of the transaction which resulted in his death. The statement will
be relevant in every case or proceeding in which the cause of that person’s death comes into
question. Such statements are relevant whether the person who made them was or was not, at
the time when they were made, under expectation of death.
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HISTORY

The doctrine of dying declaration has been adopted in the Indian Evidence Act from the
English Law. Under the English law the earliest statement of the rule that a declaration by a
dying man as to the cause of his death is admissible evidence in a trial for homicide is to be
found in dictum of Coke in the Star Chamber. The rule of dying declaration has been
concretized in R v. Woodcock1.

In this case, William Woodcock was tried before Lord Eyre C.B. for the willful murder of
Silva Woodcock, his wife. It appeared in evidence, that she was found lying in a ditch, in a
narrow lane. She had received eight wounds about the head, face, and neck, which seemed to
have been inflicted with the end of a blunt instrument; and was so exhausted by the loss of
blood as to be apparently dead. The body was taken and put into a warm bed, and by medical
assistance resorted to life. In the course of eight hours, she recovered her senses to such a
degree, as to be enabled to give a rational account of the circumstances by which this
catastrophe was accompanied. The overseers of the parish, therefore, thought it expedient to
desire the attendance of a magistrate, for the purpose of taking her information in legal form.
She gave her declaration to the Magistrate which was reduced into writing, read over to her
and signed by her. Such statement was read in evidence and Woodcock was held guilty based
on this statement.

Lord Eyre C.B. has held that the principle on which this species of evidence is admitted is that
they are declarations made in extremity, when the part is at the point of oath, and when every
hope of this world is gone; when every motive of falsehood is silenced, and the mind is induced
by the most powerful consideration to speak the truth; a situation so solemn and awful is
considered by law as creating an obligation equal to that which is imposed by a positive oath
administered in the court of justice.

Originally at common law, the rule was applied to civil cases as well, but after 1836 the
application of this rule in England was restricted to cases of homicide. However, this position
of English law was not applied in India and hence under the Evidence Act dying declarations
are equally permissible in criminal and civil cases.

1
(1789), 1 Leach 500
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EXCEPTION TO HEARSAY
Hearsay evidences are not given any weightage in the courts because the person who is giving
this evidence is not telling his experiences but that of another person and who cannot be cross
examined to verify the facts.

Hearsay is generally inadmissible in the first place is that so much gets skewed or lost in
translation. Hearsay evidence is excluded because it is considered not sufficiently trustworthy.
It is rejected because it lacks the sanction of the tests applied to admissible evidence i.e. the
oath and cross examination.

Dying declaration is an exception to this rule because if this evidence is not considered the very
purpose of the justice will be forfeited in certain situations when there may not be any other
witness to the crime except the person who has since died.

Since homicide is often a secret crime the dying declarant is often the only witness, and the
guilty person may escape punishment if the declaration is not admitted into evidence. However,
dying declarations have been admitted in cases where the killing was not secret, where there
was other adequate testimony.

It has been said that of all the exceptions to the hearsay rule, the dying declaration is the "most
mystical in its theory and the most arbitrary in its limitations”.2 In recent years the dying
declaration exception has been attacked by several writers.

2
C. McCormick, Law of Evidence § 258 (1954)
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INGREDIENTS
Dying declaration is very important documentary evidence. It is hearsay evidence but even
then it is given a lot of weightage in the court proceedings. Recording of dying declaration is
very important.

If it is recorded properly by the proper person keeping in mind the essential ingredients of the
dying declaration it retains its full value. Missing any single ingredients of dying declaration
makes it suspicious and offenders are likely to get the benefits of its shortcomings.

Following are the ingredients of a statement admitted as dying declaration in evidence:

1. Statement Must Relate To Cause Of Death

2. Death Must Be Caused

3. Expectation Of Death Not Necessary

4. Statement to WHOM?

5. Form Of Declaration

6. Proximity Of Time Between Statement & Death

7. Need For Corroboration

8. Multiple Dying Declarations

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I. Statement must relate to cause of death

The word ‘death’ appearing in Section 32 is inclusive of suicidal and homicidal death.
Statement by a person as to cause of his death become relevant when the cause of his death
comes into question even if the person was not under expectation of death at the time of making
the statement. The statement must be as to the cause of the declarant’s death, or as to any of
the circumstances of the transaction which resulted in his death, i.e. the cause and the
circumstances of the death.

The circumstances must be circumstances of the transaction: general expressions indicating the
fear or suspicion whether of a particular individual or otherwise and not directly related to the
occasion of the death are not admissible.

Information lodged by a person who died subsequently, relating to the cause of his death, is
admissible in evidence under this clause3. Where the victim uttered before her death that the
accused was standing before her with a gun, this was held to be part of the circumstances which
resulted in her death, and therefore, admissible under Sub-Section (1). The statement may be
oral or written.

Sub-Section (1) of Section 32 says that when the statement is made by a person as to the cause
of his death, or as to any of the circumstances of transaction which resulted in his death, his
statement would be relevant in a case in which the cause of his death is the point at issue. A is
assaulted and dies. Before his death he makes a statement that “B assaulted him with spear”.
This statement of A is admissible as it relates to the cause his death. The interval between the
statement and the death is immaterial.

If the deceased stated that he was injured by X but he did not die of the injuries rather he died
of some illness such as pneoumonia, his statement that X caused him injuries cannot be
admitted under this Section. Similarly, if a woman is raped, and makes statement that X
raped her and 3 days after she commit suicide, the rape is not the cause of the death, and
therefore, her statement that X raped her is not admissible as dying declaration.

3
Emperor vs. Mohammad Shaikh, (1942) 2 Cal. 144
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Pakala Narayan Swami vs. Emperor

19 January 1939
 Facts

On Tuesday, March 23, 1937, at about noon the body of the deceased man was found in a
steel trunk in a third class compartment at Puri, the terminus of a branch line on the Bengal
Nagpur Railway, where the trunk had been left unclaimed. The body had been cut into
seven portions, and the medical evidence left no doubt that the man had been murdered. A few
days elapsed before identification, but eventually the body of the deceased was identified by
his widow.

He was a man of about forty and had been married about twenty-two years. He had been a peon
in the service of the Dewan of Pithapur one of whose daughters was the wife of the accused. It
was suggested by the prosecution that before her marriage and about nineteen years before the
events in question the wife of the accused, then a girl of about thirteen, had had an intrigue
with the deceased. Four letters were produced by the deceased's widow purporting to be signed
by the girl bearing date 1918 supporting this suggestion.

The deceased was in possession of these four documents purporting to be signed by the wife
of the accused. About 1919 the accused and his wife were married. They went to live at
Berhampur about two hundred and fifty miles from Pithapur. About 1933 they returned to
Pithapur where they appear to have stayed with her father.

During 1936 the accused's wife borrowed from the deceased man at various times and in
relatively small sums an amount of Rs. 3,000 at interest at the rate of eighteen per cent, per
annum. About fifty letters and notes proving these transactions signed by the accused's wife
were found in the deceased man's house at Pithapur after his death.

On Saturday, March 20, 1937, the deceased man received a letter the contents of which were
not accurately proved, but it was reasonably clear that it invited him to come that day or next
day to Berhampur. It was unsigned. The widow said that on that day her husband showed her
a letter and said that he was going to Berhampur as the appellant's wife had written to him and
told him to go and receive payment of his due. This evidence was objected to; it was admitted
as falling under the provisions of Section 32(1) of the Indian Evidence Act.

On Tuesday, March 23, his body was found in the train at Puri as already stated.

Police suspicion does not appear to have been directed against the accused and his household
until April 4, on which date the police visited the house, examined the inhabitants and obtained
a statement from the accused, the admissibility of which is one of the principal grounds of the
appeal. They searched the premises, as is said, for incriminating documents only, and in the
afternoon arrested the four persons already mentioned.

In addition to evidence of the facts above stated, the prosecution adduced the evidence of two
employees in a shop at Berhampur where trunks were made and sold, who gave evidence that
on Monday, March 22, in the afternoon the dhobie or washerman of the accused called at the
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shop and ordered a trunk, and that a trunk was taken to the accused's house and shown to him
and his wife. It was rejected as being too large, and a smaller one of the size of the trunk in
question was then delivered to the dhobie at the shop and he took it away. The transaction was
entered in the rough day book and in the fair copy book of the shop as of the day in question.
The witnesses identified the trunk in which the body was found as being the trunk of their
manufacture which was sold in the circumstances stated on the Monday afternoon.

The dhobie was called and proved the purchase of a trunk after the rejection by the accused of
the first one brought from the shop. He, however, placed the date as being on a Saturday.

Evidence was given by a jetka driver who lived near the accused that early in the morning some
four months before the trial the accused had come to his house and said he wanted a jetka; that
he drove to the accused's house; that a trunk which was like the trunk in question was loaded
on the jetka; and that he drove the accused with the trunk to the station where the trunk was
unloaded and taken into the station. The evidence was corroborated by a man who ran alongside
the jetka.

When the accused was examined by the police at his house on April 4, it is alleged that he made
the statement which the defence sought to have rejected and which must be further discussed.
The alleged statement was that the deceased had come to his house on the evening of March
21, slept in one of the outhouse rooms for the night and left on the evening of the 22nd by the
passenger train; that on the morning of March 23 the accused went to the station with Gangulu
(the jetka driver) in his jetka, and went off by the passenger train to Chatrapur on some private
business with one Delhi Chiranjivi Rao.

 Rule stated

It was suggested that the statement must be made after the transaction has taken place, that the
person making it must be at any rate near death, and that the "circumstances" can only include
the acts done when and where the death was caused.

The statement may be made before the cause of death has arisen, or before the deceased has
any reason to anticipate being killed.

The circumstances must be circumstances of the transaction: General expressions

indicating fear or suspicion whether of a particular individual or otherwise and not directly
related to the occasion of the death will not be admissible. "Circumstances of the transaction"
is a phrase, no doubt, that conveys some limitations. It is not as broad as the analogous used in
"circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand
narrower than "res gestae". Circumstances must have some proximate relation to the actual
occurrence, though as for instance, in a case of prolonged poisoning they may be related to
dates at a considerable distance from the date of the actual fatal dose.

It was observed that "the circumstances" must be the transaction which resulted in the death of
the declarant. It is not necessary that there should be a known transaction other than that the
death of the declarant has ultimately been caused, because the condition for the admissibility
of the evidence is that "the cause of the declarant's death comes into question".
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Admissibility of the dying declaration: The transaction is one in which the deceased was
murdered on March 21, or March 22, and his body was found in a trunk proved to be bought
on behalf of the accused. The statement made by the deceased on March 20 or 21 that he was
setting out to the place where the accused lived, and to meet a person, the wife of the accused,
who lived in the accused's house, appears clearly to be a statement as to some of the
circumstances of the transaction which resulted in his death. The statement was rightly
admitted.

Statement of accused under Section 162 of Criminal Procedure Code: Section 162 is
confined to statements made to a police-officer in course of an investigation. The statement of
the accused to the police that the deceased arrived at his place was held to be not relevant by
virtue of Section 162 of the Criminal Procedure Code. This section provides that a statement
made by a person to a police officer in the course of an investigation cannot be used against
him in any inquiry or trial. Their Lordships noted that the words of the Section lead to a
conclusion that the statement is not admissible even when made by the person ultimately
accused.

 Judgment

Sessions Judge at Berhampur convicted the appellant of the murder of one Kuree Nukaraju and
sentenced him to death. The accused, his wife, his wife's brother, and his clerk living at his
house were charged with the murder before the Sub-divisional Magistrate, Chatrapur, in May
and June, 1937.

After hearing the evidence the examining Magistrate discharged all the accused holding that
there was no sufficient evidence to support the charge. Thereupon the Sessions Judge,
Berhampur, exercising his powers under the Code of Criminal Procedure, in July, 1937,
ordered the present accused and his wife to be committed to the Court of Session to stand their
trial for offences under sections of the Indian Penal Code 120 B (conspiring to murder), 302
(murder) and 201 (causing evidence of an offence to disappear).

At the trial, the Sessions Judge acquitted the appellant's wife of all the charges but convicted
the appellant of murder and sentenced him to death.

The appeal by the accused was based upon the admission of certain evidence said to be made
inadmissible by provisions of the Code of Criminal Procedure and the Indian Evidence Act;
and was further maintained upon the contention that whether the disputed evidence be admitted
or not, and certainly if it ought to have been rejected, there was no evidence sufficient to support
this conviction.
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II. Death must be caused

Before the statement of a person as to cause of his death may be used as dying declaration, it
must be proved that his death was caused by the injury which he received in the incident for
which accused is being prosecuted. And that too, the dying declaration will be made admissible
only when the person making the declaration is dead i.e. the person making the dying
declaration must be dead.

Charan Bhan Singh was tried of the murder of Shaitan Singh. The deceased Shaitan Singh
himself lodged report in which he narrated the story of incident. After the medical examination,
the deceased developed tetanus and died of it, it was held that the statement of deceased could
not be used as dying declaration4.

III. Expectation of death not necessary

The clause incorporates the principle of English Law relating to what are popularly known as
dying declarations but marks a remarkable departure from them. One of the most important
departures from English Law that the Indian Evidence Act marks is that here it is not
necessary that the declarant should be under any expectation death. If the declarant has
in fact died and the statement explains the circumstances surrounding his death, the
statement will be relevant even if no cause of death had arisen at the time of making of
the statement.

ENGLISH LAW

According to English law, the statement is relevant only when the charge is that of murder or
manslaughter. Under the English law the earliest statement of the rule that a declaration by a
dying man as to the cause of his death is admissible evidence in a trial for murder or
manslaughter is to be found in dictum of Coke in the Star Chamber. As to the principle
underlying the acceptance of dying declaration Lord Eyre C. B5. held that:

“The principle on which this species of evidence is admitted is, that they are declarations made
in extremity, when the part is at the point of oath, and when every hope of this world is gone;
when every motive of falsehood is silenced, and the mind is induced by the most powerful
consideration to speak the truth; a situation so solemn and awful is considered by law as
creating an obligation equal to that which is imposed by a positive oath administered in the
court of justice. Thus, the rationale is that no one would wish to die with a lie on his
lips”. Under English law it is essential to the admissibility of dying declaration that the
declaration must have entertained a settled hopeless expectation of death, but he need not have
been expecting immediate death.

4
Chandra Bhan Singh vs. State, 1971 CrLJ 94
5
(1789) 1 Leach 500 : 168 E.R. 352
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In R v. Jenkins6, the prisoner was charged with the murder of a woman. He attacked her at
about midnight but there was sufficient light to enable her to identify him. She was taken to a
hospital where a magistrate ‘clerk was called to record her statement and she clearly accused
Jenkins of the crime. The clerk asked her “Do you make the statement with no hope of your
recovery”. She said “I make statement with no hope of my recovery”. The clerk then read the
statement over to her but before signing it, she desired to add the words “at present” to her
statement, so that the statement would read: “I make the statement with no hope of recovery at
present”. It was held that the statement was not a dying declaration as her insistence upon the
words “at present” showed that she had some faint hope of recovery.

The statement must relate to the circumstances or the cause of the declarant's own death. A
counter example is the dying declaration of Clifton Chambers in 1988, in which Chambers
confessed that ten years earlier, he had helped his son bury a man named Russell Bean, whom
the son had killed by accident. The statement was sufficient cause to justify a warrant for a
search on the son's property; Bean's body was indeed found, but there was no physical evidence
of a crime after ten years, and since Chambers was not the victim, his dying declaration was
not admissible as evidence, and the son was never brought to trial7.

INDIAN LAW

Indian law does not put any such restrictions. It is not required under Indian law that the maker
should be under expectation of death nor is it restricted to case of homicide only.

In Naresh Rai v. State of Bihar8, statements made in expectation of death by the surviving
injured victim cannot be termed as dying declaration. Where the surviving victim said nothing
about his dying declaration in his statement under s.313 crpc, such dying declaration has no
value.

In Shym Narayan Singh vs. State of Bihar9, It was held that where the doctor who conducted
the post-mortem had died and the post -mortem report was brought on record by the head clerk
in the prosecutor’s office, here the report was admissible under Sec.32.

6
(1869) L.R. 1 C.C.R. 187
7
"Last Words", Brendan I. Koerner, Legal Affairs, November/December 2002. Fetched from URL on 9 May
2011.
8
1994 Cr L J 978 (Pat.)
9
1993 Cr L J 772 (Pat.)
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DIFFERENCE
1. In England, dying declaration in civil cases is not admissible but in Indian law it
is admissible in civil cases into question.

2. In England ,dying declaration is admissible only in single instance of homicide i.e.

murder or manslaughter where the death of the deceased is subject to charge and in
india, whatever may be the nature of the proceeding if the cause of the death of the
deponent comes in question his dying declaration is relevant.

3. Certain conditions are required in England –

(i) it is necessary that the declarent should have been in actual danger of death.
(ii) he should have been aware of this danger.

(iii) the death should have caused.

But existence of the conditions in (i) and (ii) are not necessary in India, the
statement is admissible where the deponent dies and the cause of his death comes in
question.
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IV. Statement TO WHOM?

It is immaterial to whom the dying declaration is made. The declaration may be made to
magistrate, a police officer, a public servant or a private person. If made before a doctor
indeed he would be the best person to opine about the fitness of the dying man to make the
statement and to record the same, where he found the life was fast ebbing out of the dying man
and there was no time to call the magistrate or the police. In such a situation a doctor was
justified, indeed he was duty bound to record the dying declaration.

The declaration may take the form of F.I.R or statement before police (sec.162 Cr P C).
It may also take the form of complaint or before magistrate (sec.164 of Cr P C).

It is best that it is recorded by the magistrate but if there is no time to call the magistrate
due to the deteriorating condition of the victim it can be recorded by anybody e.g. public
servant like doctor or any other person. Courts discourage the recording of dying declaration
by the police officers but if there is nobody else to record it dying declarations written by the
police officers are also considered by the courts. If these are not recorded by the magistrate it
is better that signatures of the witnesses are taken who are present at the time of recording it.

DYING DECLARATION RECORDED BY MAGISTRATE

The dying declaration was recorded by special executive magistrate who deposed that he had
satisfied himself that the deceased was in a perfectly fit condition to make statement which was
supported by the police officer.

In State of U.P v. Shishupal Singh10, where the dying declaration was recorded by the
magistrate which was neither signed by the deceased, nor contained date and time of its
recording and the prosecution failed to give any explanation that the deceased was not in a
position to sign it, it was held that such dying declaration which was imp regnant with so many
suspicious circumstances which created doubt about its genuineness and it was not safe to base
conviction on it.

IN THE FORM OF F.I.R

First information report got recorded by the police has been taken as dying declaration by the
honorable Supreme Court, when the person did not survive to get his dying declaration
recorded . But when patient remained admitted in hospital for sufficient days i.e. for 8 days
FIR cannot be treated as dying declaration. A suicidal note written found in the clothes of the
deceased it is in the nature of dying declaration and is admissible in evidence under section 32
of Indian Evidence Act. A declaration noted down by an assistant sub-inspector even before
any F.I.R was lodged was acceptable held by Supreme Court. A dying declaration recorded by
police alone is relevant both under Section 32 (1) and by virtue of the saving of such statements
under Section 162(2) of Crpc but even so the Supreme Court had laid down that it is better to
leave such a statement out of consideration unless the prosecution satisfies the court as to why
it was not recorded by a magistrate or a doctor.

10
. AIR 1994 SC 129
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The Supreme Court observed in State of Punjab v. Amarjit Singh11, that it would be better
to have a dying declaration recorded by a magistrate. It was further observed that no hard and
fast rule could be laid down in this regard and it all depends upon the facts and circumstances
of each case. But there is also this observation of the Supreme Court that a dying declaration
recorded by police cannot be discarded on that ground alone.

IN THE FORM OF COMPLAINT

In Jai Prakash v. State of Haryana,12 a woman was called by her relatives in connection with
a property dispute. On her arrival kerosene was poured on her and she was set ablaze. She died
four days later. A statement in the nature of a complaint was recorded by a police officer in
hospital. Later the same statement was taken to be a dying declaration.

DYING DECLARATION MADE TO RELATIVES

The Supreme Court laid down in case of Barati v. State of U.P,13 that a dying declaration
made to the relatives of the deceased, when properly proved can also be trusted. In this case
the deceased who was killed by sprinkling acid on him first made the statement to his brother
and son, repeated it at police station and then at the hospital charging the accused, the court
held that the statement was worthy of credit.

STATE OF M.P vs. DAL SINGH & Ors.14

In the instant case, a Damoh trial court had convicted one Dal Singh and his wife for setting
ablaze their daughter-in-law, who had been subjected to cruelty in the matrimonial home. It
was found that she had suffered 100% burn injuries, the Madhya Pradesh High Court
acquitted the accused doubting the veracity of the woman's dying declaration.

It was held that in this case, you need not be a police officer, doctor or a magistrate to
record the dying declaration, a statement accusing those responsible for the death of the
person making his last possible statement.
The Supreme Court has found this to be true in law, at least in cases where the person dies
of burn injuries. "The law on the issue cannot be summarized to the effect that law does not
provide who can record a dying declaration, nor is there any prescribed form, format or
procedure for the same".
While indicating that any member of public could record the statement of a dying person, the
bench said the only caveat was that the person recording the dying declaration must be sure
that the one making the statement was in a proper mental condition to do so.

11
A.I.R 1988 S.C. 2013
12
(1997) 7 S.C.C 284
13
AIR 1974 S.C. 839
14
AIR 2013
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V. Form of Declaration

Although there is no particular form of dying declaration but a dying declaration may be in
the following forms:

a) Written form;
b) Verbal form;
c) Gestures and Signs form.
d) Narrations.

Dying declaration recorded in the language of the declarant acquires added strength and
reliability. It is preferred that it should be written in the vernacular which the patient
understands and speaks.

In Deepak Baliram Bajaj vs. State of Maharashtra,15 a lady suffered 100% burn injuries.
The dying declaration was recorded in hospital by a constable. Questions were asked in Sindhi
by Spl. Executive Magistrate and were replied in Sindhi and then translated to the constable in
Hindi who in turn recorded them in Marathi. The statement contained minute details and was
extremely coherent though the lady was in acute pain and agony. There was endorsement on it
that the declaration was explained in Hindi and not in Sindhi. It was held that the conviction
based solely on such a dying declaration could not be sustained.

However, the best form of dying declaration is in the form of questions and answers.
Whenever a dying declaration is being recorded in the form of questions and answers
precaution should be taken that exactly what questions are asked and what answers are given
by the patient those should be written.

The mere fact that a dying declaration is not in question answer form does not destroy it value.
A dying declaration cannot be discarded only on the ground that it was not recorded in question
answer form. If it is in the form of narrations it is still good because nothing is being prompted
and everything is coming as such from the mind of the person making it.

‘Verbal’ means by words. It is not necessary that the words should be spoken. An oral dying
declaration means a statement which was not recorded and is reproduced by the witnesses out
of memory. The Supreme Court has laid down that the exact words of such statement must be
reproduced. Any variance in statement of the witnesses with regard to the exact words would
materially affect the value of the oral dying declaration. Such declaration has to be trustworthy
and free from every blemish and inspire confidence.

Dying declarations aren't always declarations at all, at least in the traditional sense of verbal
statements. Traumatized victims, often robbed of the ability to speak, are sometimes asked to
make "declarations" through a series of nods, winks, or hand signals—physical gestures.

The word of another person may be adopted by a witness by a nod or shake of the head. If a
person is not capable of speaking or writing he can make a gesture in the form of yes or no by

15
1993 Cr L J 3269
 P a g e | 19

nodding and even such type of declaration is valid. In Queen-Empress vs. Abdullah,16 the
deceased shortly before her death was questioned by various persons as to the circumstances
in which the injuries had been inflicted on her and she was unable to speak at that time, but
was conscious and able to make signs. It was held that the questions and sign taken together
might properly be regarded as ‘verbal statements’ made by the person as to the cause of her
death and were therefore, admissible in evidence.

A statement made by signs is equally admissible. This was laid down in Queen-Empress vs.
Abdullah17, where the throat of the deceased girl was cut and she being unable to speak
indicated the name of the accused by the sign of her hand which was held to be relevant as
dying declaration.

In State of Karnataka vs. Shariff, 18 it was held that a statement recorded in narrative form may
be more natural and may give a true version of the incident as perceived by the injured person.

Even the history given by the injured recorded by the doctor in the case file has been considered
as dying declaration by the honorable Court if it is mentioned that the patient told in the history
that incident occurred in such and such manner which was responsible for the death of the
victim. Hence it is important that if such history is written as narrated by the victim it should
be recorded carefully.

 First Information Report:

First Information Report recorded by the police has been taken as dying declaration by the
Hon'ble Supreme Court of India, when the person did not survive to get his dying declaration
recorded.

Where the F.I.R. clearly implicating the accused and giving details of the incident, was
lodged by the deceased, it was held that the same could also be used as dying declaration.

Where the declaration was recorded by the Sub-Inspector in the nature of an F.I.R. but it was
not attested by the doctor to the effect whether the injured was conscious or not and signature
or thumb impression of the deceased was also not taken, the dying declaration in the F.I.R.
was held to be highly doubtful.

But in State of Punjab v. Kikar Singh,19 it has been held when patient remained in hospital for
sufficient days i.e. for 8 days; the FIR cannot be treated as dying declaration.

Moreover, a suicidal note written found in the clothes of the deceased is in the nature of
dying declaration and is admissible in evidence under section 32 of Indian Evidence Act20.

16
(1885) 7 All 385
17
I.L.R (1885) 7 All. 385
18
2003 Cr L J 1254 (SC)
19
2002 (30 RCR (Criminal) 568 (P & H) (DB)
20
State v. Maregowda, 2002 (1) RCR (Criminal) 376 (Karnataka) (DB)
 P a g e | 20

 Incomplete Dying Declaration:

Incomplete dying declaration is inadmissible in the court. In Kusa v. State of Orissa,21 it has
been held when the person making the declaration dies before completion of his statement, no
one can tell what the deceased was about to add.

But where all the necessary questions had been asked by the magistrate, or the doctor and
replied by the deceased, and a couple of concluding questions were not answered by the
deceased on account of becoming semi-conscious, the dying declaration may not be regarded
to be incomplete.

It does not matter that the person has put a thumb impression or signed the declaration if this
is duly witnessed. But in the court a question does arise if a person who can sign puts a thumb
impression.

If a literate person putting the thumb impression is in such a condition that he cannot sign e.g.
he was lying in the bed and could not get up to sign it or it was inconvenient for him to put
thumb impression due to his condition or injury like injury on the right hand in a right handed
person.

In the absence of such conditions if there is thumb impression and this is not witnessed by
disinterested persons a doubt may be created whether this was done after the person died to
take revenge by some interested person.

21
1980 SC 559
 P a g e | 21

VI. Proximity of time between statement and death

Section 32 does not prescribe that there should be a fixed time nexus between death and
incident or with the statement or that the victim should essentially be in apprehension of
immediate death. All that is necessary is that there should be proximate relationship between
the statement and the circumstances of death.

In Sharad Birdhi Chand Sarda vs. State of Maharshtra,22 a young married woman had been
speaking to her parents and other relatives and also writing to them expressing the danger to
her life. She lost her life three or four months after that. Her statements were admitted as
showing the circumstances of death. They were not too remote in time from the point of death.
The court held that the test of proximity cannot be literally pursued and practically reduced to
a cut and dried formula of universal application. Distance of time would depend on or vary
with circumstances of each case.

There is usually no time limit that dying declaration becomes invalid if the person died after
many months after making the declaration. Cases are on record when it was considered valid
after 4 months. The declaration would not lose their value on the ground that the maker died
long after making the statement. This question has to be considered on the facts of each case.

In Nandyala Venkatrama vs. State of A.P.,23 two days prior to occurrence, the deceased wife
told to her mother about the harassment she was facing for repeated demands of dowry. The
letters which she had written to her mother before her death also spoke of harassment. Letters
inculpating the husband were proved to be in her handwriting. The Supreme Court upheld his
conviction.

 Delay in Recording Declaration:

Where some delay took place in recording the dying declaration which was due to the fact that
the injured person was not in the fit condition to make the statement, it was held that the
declaration could be relied upon.

In Ramsai vs. State of M.P.,24 the deceased allegedly made oral dying declaration to the
witnesses who informed about it to the police after 2 days of the death of the deceased and
not immediately and no explanation was given for its delayed disclosure. Besides, the same
was not corroborated by the evidence of any independent witness and medical evidence. It
was held that the conviction on the basis of such a dying declaration was unsafe.

In Mafabhai Nagarbhai Rowal vs. State of Gujarat,25 the Supreme Court held that where
the death was caused by pouring kerosene and setting the deceased on fire where she received
99% burn injuries, a dying declaration recorded by the doctor within five minutes of the
incident and subsequently by an executive magistrate was relevant.

22
AIR 1984 SC 1622
23
AIR 2011 SC 567
24
AIR 1994 SC 464
25
(1992) 4 SCC 69
 P a g e | 22

In the instant case the trial court had refused to act upon the dying declaration taking the view
that the moment the woman saw flames on her person she must have received a severe shock
which must have become ‘graver and graver’ and in the State of mind she could not have
kept balance of her mind and full consciousness so as to make the statements. The doctor has
stated that that though occurrence took place at midnight, mental shocks developed for the
first time at 4 a.m. This was disbelieved by the trial court. The trial court also doubted the
statement of the deceased recorded by the executive magistrate, which was not in question-
answer form, as being not exactly in the words of the deceased.

The Supreme Court said that the doctor who examined the deceased, recorded her statement
and later conducted post-mortem was the only competent witness to speak about the nature of
injuries and cause of death. The court observed that unless there is something inherently
defective, the court cannot substitute its opinion for that of the doctor. The trial court erred in
not acting upon the evidence of the dying declaration. There was no infirmity in the evidence
of the doctor and the executive magistrate. Both dying declarations were recorded by
independent witnesses and gave true version of the occurrence pointing to the appellant as
perpetrator of the crime. Dying declarations were themselves sufficient to hold the appellant
guilty under Section 302 IPC as held by the High Court.

The test of proximity cannot be too literally construed and practically reduced to a cut-and-
dried formula of universal application so as to be confined in a strait-jacket. Distance of time
would depend or vary with the circumstances of each case.

For instance, where death is a logical culmination of a continuous drama long in process and
is, as it were a finale of the story, the statement regarding each step directly connected with
the end of the drama would be admissible because the entire statement would have to be read
as an organic whole and not torn from the context.

Sometimes statements relevant to or furnishing an immediate motive may also be admissible

as being a part of the transaction of death. It is manifest that all these statements come to light
only after the death of the deceased who speaks from death. For instance, where the death
takes place within a very short time of the marriage or the distance of time is not spread over
more than 3-4 months the statement may be admissible under Section 32.
 P a g e | 23

Smt. Paniben v. State of Gujarat26

The appellant in the appeal was convicted under Section 302 of the Indian Penal Code, and
sentenced to life imprisonment by the High Court reversing the acquittal of the Trial Court.

But the Supreme Court dismissed the appeal and upheld the conviction of the appellant.

 FACTS

The deceased Bai Kanta was married to Valji Savji in the year 1972. Accused is the mother-
in-law of Bai Kanta. There were frequent quarrels between the appellant-mother-in-law and
the deceased-daughter-in-law. On one occasion, on account of a quarrel the daughter-in -law
went away to her parent’s house and on the assurance of her father-in-law that nothing would
go wrong, the Bai Kanta was sent to the house of the accused. The accused, Bai Kanta and her
husband were all living in the same house. Even after the return, there used to be quarrels
between the accused and the deceased. The accused developed a profound dislike for the
deceased.

On 7th May,1977, at about midnight, the deceased was sleeping all alone in the ‘osri’ of the
House. The accused went there, poured kerosene on the daughter-in-law, and as she got up, the
accused lit the fire and left the ‘osri’. The deceased shouted for help and hearing her shouts,
her husband and other collected there and the fire was extinguished. She was removed to the
hospital in the cart. In the cart, she told some witnesses that her mother-in-law had burnt her.
Later on she was taken to the Government hospital in a taxi in a burnt condition.

The Head Constable went to the hospital and recorded the statement of the deceased in the
early hours. In that statement, she stated that her mother-in-law had burnt her. The Executive
Magistrate reached the hospital at about 7.00 A.M. on 18.5.1977, and recorded the dying
declaration. In that declaration also, the deceased stated that she was burnt by the accused.

The Police sub-Inspector, who took up the investigations, also recorded a statement of the
deceased on 19.5.1977. In that also, the deceased stated that she was burnt by her mother-in-
law. The sub-Inspector arrested the accused on 18.5.1977. The deceased succumbed to the
injuries on 20.5.1977.

 Trial Court’s Decision:

The Trial Court came to the conclusion that the deceased might have committed suicide, that
it was also probable that someone else might have burnt her alive, because she had a grievance
against her mother-in-law she implicated her in dying declaration. The dying declarations were
not be accepted having regard to the inherent infirmity.

On the above findings it was held that the prosecution had failed to prove that the deceased was
burnt alive by the accused, and the accused was acquitted.

26
AIR 1992 SC 1817
 P a g e | 24

 High Court’s Decision:

The State appealed to the High Court of Gujarat where it was found that the dying declaration
clearly showed as to how the occurrence had taken place.

The second dying declaration was recorded in question and answer form. There was no scope
of tutoring the deceased for giving any statement which would involve the accused. At that
time the deceased was all right and she was in a position to give the dying declaration. The
third dying declaration was made by the deceased’s father Jadav who was a truthful witness
and it clearly established that there was no scope of parents tutoring the deceased in any way.

The High Court also did not accept the findings of the Trial Court with reference to the various
aspects like enmity between the mother-in-law and the deceased, the appreciation of the
statement of deceased, the failure of the deceased to narrate the incidence to her husband.

The High Court held that the deceased was quite happy with her marriage except the
relationship with her mother-in-law. There was no indication that the deceased was so harassed
as to have lost her self-control so as to commit suicide. The High Court was not prepared to
believe that the deceased attempted to commit suicide and only for the revenge, she involved
the accused falsely.

Therefore, the order of acquittal was set-aside. The accused was held guilty of the offence of
murder. She was convicted under section 302 of Indian Penal Code and sentenced to
imprisonment for life.

 JUDGMENT

In this case the Supreme Court has laid down the principles laid in several judgments governing
dying declaration, which could be summed up as under:

1. There is neither rule of law nor of prudence that dying declaration cannot be acted upon
without corroboration.

2. If the Court is satisfied that the dying declaration is true and voluntary it can base
conviction on it, without corroboration.

3. The Court has to scrutinize the dying declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or imagination.

4. Where dying declaration is suspicious, it should not be acted upon without

corroborative evidence.

5. Where the deceased was unconscious and could never make any dying declaration the
evidence with regard to it is to be rejected.
 P a g e | 25

6. A dying declaration which suffers from infirmity cannot form the basis of conviction.

7. Merely because a dying declaration does contain the details as to the occurrence, it is
not to be rejected.

8. Equally, merely because it is a brief statement, it is not to be discarded. On the contrary,

the shortness of the statement itself guarantees truth.

9. Normally the Court in order to satisfy whether deceased was in a fit mental condition
to make the dying declaration look up to the medical opinion. But where the eye-witness
said that the deceased was in a fit and conscious state to make the dying declaration,
the medical opinion cannot prevail.

10. Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.

11. Where there are more than one statement in the nature of dying declaration, one first in
point of time must be preferred. Of course, if the plurality of dying declaration could
be held to be trustworthy and reliable, it has to be accepted.

The Court rejected the contention of the appellant that the declarant could have been tutored or
prompted by her father to whom the oral dying declaration was given holding that the parents
of the deceased reached the hospital only round about 7.30 a.m. Hence there is no possibility
of her being tutored, prompted as to utter falsehood, so as to implicate the accused.

The deceased gave multiple dying declarations to Head Constable, Executive Magistrate,
Police sub-Inspector and her father respectively at different times. In all her statements she
implicated her mother-in-law for setting her ablaze. At the time when she made the statements,
she was in a fit mental condition to make the statement.

Therefore, the Apex Court dismissed the appeal and upheld the conviction of the appellant.
 P a g e | 26

VI. CORROBORATION
The word ‘corroboration’ is derived from the Latin word ‘corroboratus’, past part of the word
‘corroborare’ which has itself been derived from another Latin word ‘robust’27. It means “to
confirm and sometimes add substantiating (reinforcing) testimony to the testimony of another
witness or a party in a trial.” At another place it is defined as “confirmation and support by
additional evidence or authority.” It is also meant “to support or enhance the believability
of a fact or assertion by the presentation of additional information that confirms the
truthfulness of the item.”

The evidence which is used for the purpose of corroboration is termed as corroborating
or corroborative evidence which may be defined as that kind of “evidence which
strengthens, adds to, or confirms already existing evidence.”

 Nature of Corroboration

The most important case regarding the nature of corroborative evidence is Rex v. Baskerville
(1916) which is followed in numerous common law jurisdictions across the world. The
judgment in this case was pronounced by the Court of Criminal Appeal, United Kingdom, with
respect to approver’s evidence. But taking into account the rationale and cogency of the
judgment, it is treated as a precedent in all circumstances requiring corroboration of any
evidence. Its relevant portion explicating the rules of corroboration is reproduced here in detail:

i. “The corroboration must be by some evidence other than that of an accomplice; and,
therefore, one accomplice’s evidence is not corroboration of the testimony of another
ii. The corroborative evidence must be evidence which implicates the accused, that is,
which confirms in some material particular not only the evidence that the crime has
been committed, but also that the accused committed it. In other words, the
corroboration must be both as to the corpus delicti and as the identity of the accused.
iii. It is not necessary that the story of the accomplice should be corroborated in every detail
of the crime, since, if this were so, the evidence of the accomplice would be
unnecessary.
iv. The corroboration need not be direct evidence that the accused committed the crime; it
is sufficient if it is merely circumstantial evidence of his connection with the crime.

The Requirement of Corroboration of Dying Declarations

It only declares relevancy of dying declaration as an admissible piece of evidence. Most of the
time declarations of dying men are hearsay evidence because they are not generally adduced
in the court by their makers. This was the background which necessitated that there ought to
be a specific provision if the legislature intended to declare dying declarations as relevant piece
of evidence when the Indian Evidence Act was enacted in1872. Hence, it was the background
of enacting Section 32 of the Indian Evidence Act, 1872

27
Mehrban v. State, 1974.
 P a g e | 27

Corroboration not necessary

The Supreme Court observed that a dying declaration can be used as a sole basis of
conviction. A person on death bed is in a position so solemn and serene that it is equal to
the obligation under oath. For this reason, the requirement of oath and cross examination
is dispensed with. The declarant being the only eye witness, the exclusion of his
declaration may defeat the ends of justice. The court has to be on its guard and see for itself
that the declaration is voluntary and seems to reflect the truth.

The Supreme Court has laid down in the case of Bharati vs. State of U.P.28, that a dying
declaration made to the relatives of the deceased, when properly proved, can also be trusted. In
this case the deceased who was killed by sprinkling acid on him, first made the statement to his
brother and son, repeated it at the police station and again at the hospital charging the accused,
the court held that the statement was worthy of credit.

In another case before the Supreme Court29, a dying declaration made by the deceased
against his own son was held to be one on which the court could proceed to convict. The
court followed its own earlier decision in Lallubhai Davanchand Shah vs. State of Gujarat 30,
where it was held that if the truthfulness of a dying declaration is accepted, it can always form
the basis of conviction of the accused. Even though there was some enmity between the father
and son, it would have been most unlikely that his father would in his dying moment try to
falsely implicate his own son. This circumstance was considered to be a sufficient guarantee
of the truth of the dying declaration.

It retains its full value if it can justify that victim could identify the assailant, version narrated
by victim is intrinsically sound and accords with probabilities and any material evidence is not
proved wrong by any other reliable evidence. it is perfectly permissible to reject a part of
dying declaration if it is found to be untrue and if it can be separated . Dying declaration
becomes unreliable if it is not as per prosecution version.

A dying declaration is not a weaker kind of evidence than any other piece of evidence.
Evidence of dying declaration is admissible not only against the person actually causing
death but also against other persons participating in causing death.

The grounds of admission are: firstly, necessity for the victim being generally the only
principal eye-witness to the crime, the exclusion of the statement might deflect the ends of
justice; and secondly, the sense of impending death, which creates a sanction equal to the
obligation of an oath. The general principle on which this species of evidence is admitted is
that they are declarations made in extremity, when the party is at the point of death and when
every hope of this world is gone, when every motive to falsehood is silenced, and the mind is
induced by the most powerful considerations to speak the truth; a situation so solemn and so
lawful is considered by the law as creating an obligation equal to that which is imposed by a
positive oath administered in a Court of justice.

28
AIR 1974 SC 839
29
V.S. More vs. State of Maharashtra AIR 1973 SC 519 at p.521
30
AIR 1972 SC 1776
 P a g e | 28

In Laxman v. State of Maharashtra31, it was observed by a Constitution Bench of the Supreme

Court that where the medical certificate indicated that the patient was conscious, it would not
be correct to say that there was no certification as to state of mind of declarant. Moreover, state
of mind was proved by testimony of the doctor who was present when the dying declaration
was recorded.

In Rambai v. State of Chhattisgarh32, it was held that if the person recording the dying
declaration is satisfied that the declarant is in a fit medical condition to make a dying
declaration then such dying declaration will not be invalid solely on the ground that the doctor
has not certified as to the condition of the declarant to make the dying declaration.

In Smt. Laxmi v. Om Prakash and others33, their Lordship Hon'ble Mr. Justice R.C. Lahoti
summed up the question of the admissibility and the probative value of a dying declaration in
the following words:

"One of the important tests of the reliability of the dying declaration is a finding arrived at by
the Court as to satisfaction that the deceased was in a fit state of mind and capable of making
a statement at the point of time when the dying declaration purports to have been made and/or
recorded. The statement may be brief or longish. It is not the length of the statement but the fit
state of mind of the victim to narrate the facts of occurrence, which has relevance. If the Court
finds that the capacity of the maker of the statement to narrate the facts was impaired or the
Court entertains grave doubts whether the deceased was in a fit physical and mental state to
make the statement the Court may in the absence of corroborative evidence lending assurance
to the contents of the declaration refuse to act on it.”

In a case, the Supreme Court attached no importance to the omission of the doctor’s certificate
of mental fitness for statement, because the case was not wholly dependent upon the
declaration.

Medical certificate

 Fitness of the Declarant to make a statement to be certified by the Judicial

Magistrate or other officer concerned—The Judicial Magistrate or other officer
recording a dying declaration shall at the conclusion of the dying declaration certify
that the declarant was fit to make a statement and it contained a correct and faithful
record of the statement made by him as well as of the questions, if any, that were put to
him by the justice recording the statement. If the accused or his counsel happens to be
present at the time the dying declaration is recorded, his presence and objection, if any,
raised by him shall be noted by the Judicial Magistrate or the officer recording the dying
declaration, but the accused of his counsel shall not be entitled to cross- examine the
declarant.
 Recording of a Dying declaration by a Police Officer or Medical Officer—Where
a dying declaration is recorded by a Police Officer or a Medical Officer, it shall, so far

31
(2002) 6 SCC 710
32
(2002) 8 SCC 33
33
AIR 2001 SC 2383
 P a g e | 29

as possible, be got attested by one or more of the persons who happen to be present at
the time.
 Dying Declaration should be a free and spontaneous—It is the duty of the person
recording a dying declaration to take every possible question to ensure the making of a
free and spontaneous statement by the declarant without any prompting, suggestion or
aid from any other justice.
 Welfare of the injured persons—The Judicial Magistrate, medical officer and police
officials must all realize that the welfare of the injured person should be their first
consideration, and in no circumstances must be proper medical treatment be impeded
or delayed simply to obtain the dying declaration of the injured person.”

Number of pieces of evidence has been judicially treated as corroborative pieces of

evidence. They are following:

i. Evidence of motive,
ii. Medical evidence,
iii. Locale of injuries and its damage,
iv. Situs of injuries received by an accused,
v. Time of injuries on person of an accused,
vi. Abscondance in certain circumstances,
vii. Ballistic expert’s report,
viii. Prior judicial proceedings between parties to a case,
ix. Ocular evidence,
x. Circumstantial evidence,
xi. Conduct of an accused,
xii. Incriminating recoveries at the instance of an accused.

Dying declarations are inflicted with infirmities; the courts must look for their
corroboration before putting any implicit reliance on them. If such judicial practice is not
followed it would lead to gross miscarriage of justice. Infirmities susceptible to
corroboration as held by the courts of the Indian Subcontinent:

i. Recording of a dying declaration in suspicious circumstances,

ii. Possibility of a declarant of dying declaration being tutored,
iii. One part of a dying declaration is found to be false,
iv. Identity of assailant/s is not convincingly established,
v. Inconsistency among more than one dying declarations by the same declarant,
vi. Enmity and hostile relationship between the parties,
vii. Possibility of replacement by an innocent person in place of assailant,
viii. Dying declaration made by an interested witness.
 P a g e | 30

Evidentiary Value of Dying Declaration

In K.R. Reddy v. Public Prosecutor, evidentiary value of dying declaration was observed as
under:-

“The dying declaration is undoubtly admissible under section 32 & not being statement on oath
so that its truth could be tested by cross-examination, the court has to apply the scrutiny & the
closest circumspection of the statement before acting upon it. While great solemnity and
/sanctity is attached to the words of a dying man because a person on the verge of death is not
likely to tell lies or to connect a case as to implicate an innocent person, yet the court has to be
on guard against the statement of the deceased being a result of either tutoring, prompting or a
product of his imagination. The court must be satisfied that the deceased was in a fit state of
mind to make the statement after the deceased had a clear opportunity to observe & identify
his assailants & that he was making the statement without any influence or rancor. Once the
court is satisfied that the dying declaration is true & voluntary, it can be sufficient to found the
conviction even without further corroboration.”

In Khushal Rao v. State of Bombay34, Apex Court laid down the following principles
related to dying to dying declaration:

1. There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no corroboration.
2. A dying declaration is not a weaker kind of evidence than any other piece of evidence;
3. Each case must be determined on its own facts keeping in view the circumstances in
which the dying declaration was made.
4. A dying declaration stands on the same footing as other piece of evidence & has to be
judged in the light of surrounding circumstances & with reference to the principle
governing the weight of evidence.
5. A dying declaration which has been recorded by a competent Magistrate in the proper
manner, that is to say, in the form of questions and answers, &, as far as practicable in
the words of the maker of the declaration stands on a much higher footing than a dying
declaration which depends upon oral testimony which may suffer from all the
infirmities of human memory & human character.
6. In order to test the reliability of a dying declaration the court has to keep in view the
circumstances like the opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed in the night; whether the
capacity of man to remember the facts stated had not been impaired at the time he was
making the statement by circumstances beyond his control; that the statement has been
consistent throughout if he had several opportunities of making a dying declaration
apart from the official record of it; & that the statement had been made at the earliest
opportunity & was not the result of tutoring by interested party.

34
1957
 P a g e | 31

VIII. Multiple Dying Declarations

If there are two or more dying declarations giving two different versions, a serious doubt arises
about truthfulness of the declarations. The Supreme Court has laid down this principle that
when there are multiple dying declarations, each has to be considered independently on
its own merits as to its evidentiary value. One cannot be rejected because of the contrary
contents of the other.

Justices P Sathasivam and Ranjan Gogoi said in a recent judgment held "In spite of stringent
legislation in order to curb the deteriorating condition of women across the country, cases of
bride burning, cruelty, suicide, sexual harassment, rape, suicide by married women, etc; have
increased," Sathasivam said. The court made the observation while upholding the conviction
of Ashabai and Kavita, sisters-in-law of Vandana Raghunath Tayade, who was burnt to death
in Maharashtra in 2003 for her inability to conceive. "In view of clinching evidence led in by
the prosecution, there cannot be any leniency in favour of the appellants, who are sisters-in-
law of the deceased and at whose instance the deceased was burnt at the hands of her mother-
in-law," the court said, dismissing the appeals. Addressing the contention that Vandana had
made four dying declarations which were inconsistent and could not be relied upon, the court
said: "When the (trial) court is satisfied that the dying declaration is voluntary, not tainted by
tutoring or animosity, and is not a product of the imagination of the declarant, in that event
there is no impediment in convicting the accused on the basis of such dying declaration."
"When there are multiple dying declarations, each dying declaration has to be separately
assessed and evaluated on its own merit as to its evidentiary value and one cannot be rejected
because of certain variation in the other," the judges said, offering a precedent for cases in
which there is more than one dying declaration.
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CONCLUSION
Keeping in view the above mentioned opinions of various courts it is suggested that whenever
dying declaration is to be recorded it should be recorded very carefully keeping in mind the
sanctity which the courts attach to this piece of evidence.

When one individual is killed by another, the victim may utter some final words to a third party
indicating the circumstances of the death, including the purported identity of the individual
who perpetrated the event. This dying declaration, when repeated in court by the third party
would generally be inadmissible under the hearsay rule. But in contrast to other forms of
hearsay, dying declaration reported speech is admissible as legitimate and probative evidence
as to the truth of the matter asserted through purported possession of "guarantees of
trustworthiness." However, dying declarations are not inherently more reliable than other forms
of inadmissible hearsay evidence. Court’s acceptance of these words is based on unfounded
legal assumptions that are expressed through logical fallacies, a mistaken conception of
language objectivity, ignorance of the fundamental concepts of constructed speech, and a
western legal manifest through application of self-centered frameworks and cosmologies.
Overall, the basis of the dying declaration exception to the hearsay rule is founded on
assumptions about language that are of questionable validity. By applying linguistic concepts
to this form of speech, it would appear that the "guarantee of trustworthiness" rationale of the
exception is, upon analysis, neither guaranteed nor trustworthy.

A Dying Declaration made by a person on the verge of his death has a special sanctity, as at
that solemn moment, a person is most unlikely to make any untrue statement. The sanctity
attached to Dying Declaration is that a person on the verge of death would not commit sin in
implementing somebody falsely. The shadow of impending death is by itself guarantee of the
truth of the statement of the deceased regarding circumstances leading to his death. The general
principle on which this species evidence is admitted is that they are declarations made in
extremity, when the person is at point of death and when every hope of this world is gone. At
that point of time every motive to falsehood is silenced and the mind is induced by the most
powerful consideration to speak the truth. Such a Solemn situation is considered by the law as
creating an obligation equal to which is imposed by a positive oath administered in a court of
justice.

A Dying Declaration enjoys almost a sacrosanct status as a piece of evidence, coming as it does
from the mouth of the deceased victim. The Dying declaration if found to be true and free from
any effort to induce the deceased to make a false statement and if it is coherent and consistent,
there is no legal impediment to form such Dying declaration as basis of conviction even though
there is corroboration. But once the statement of Dying person and the evidence of the
witnesses testifying the same passes the test of careful scrutiny of the courts, it becomes very
important and reliable piece of evidence and if the court is satisfied that the dying declaration
is true and free from any embellishment such a Dying Declaration by itself can be sufficient
for recording conviction even without looking for conviction. It cannot be sole basis of
conviction; it has to pass through a reliability test which would be the duty of the court itself
through a careful scrutiny.
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BIBLIOGRAPHY

 Avtar Singh, Principles Of The Law Of Evidence, Central Law Publications, Allahabad,

20th Edition, 2013

 Batuk Lal, The Law Of Evidence, Central Law Agency, Allahabad, Edition, 2104

 Ratanlal & Dhirajlal, The Law Of Evidence, Wadhwa & Company Nagpur, New Delhi,

21st Edition, 2004

 http://medind.nic.in/jal/t04/i1/jalt04i1p24.pdf

 http://www.legalservicesindia.com/article/article/dying-declaration-1137-1.html

 http://www.academia.edu/6643065/DYING_DECLARATION_AND_ITS_CORROB

ORATION

 http://judis.nic.in/supremecourt/chejudis.asp

 http://www.law.umich.edu/library/spotlight/confrontationclause/cases2/Documents/rv

woodcock1leach500.pdf

 http://www.lawyersclubindia.com/articles/DYING-DECLARATION-

2639.asp#.VGNeofmUdrc

 http://www.thefreelibrary.com/Rape+victim%27s+father+wants+name+revealed-

a0314102317

 http://pgil.pk/wpcontent/uploads/2014/05/CourtRuleFileP9S0NL6U.pdf

 http://www.legalserviceindia.com/article/l421-Dying-Declaration-by-Rape-Victims-

A-Critical-Analysis.html